IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE August 18 ...

[Pages:27]IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE

August 18, 2009 Session

STATE OF TENNESSEE v. KELVIN DEWAYNE KING

Direct Appeal from the Criminal Court for Davidson County No. 2006-B-1695 J. Randall Wyatt, Jr., Judge

No. M2009-01778-CCA-R3-CD - Filed March 26, 2010

A Davidson County jury convicted the Defendant, Kelvin Dewayne King, of three counts of first degree murder and one count of especially aggravated robbery. The Defendant was sentenced to life without parole for each of the three first degree murder convictions. The trial court sentenced him to thirty-five years for the especially aggravated robbery conviction, and ordered the sentence for one of the first degree murder convictions to be served consecutively to the other convictions for an effective sentence of two life sentences without parole. The Defendant appeals, arguing that: (1) the evidence is insufficient to support his first degree murder convictions when his due process rights were violated, (2) the trial court allowed testimony at trial from a witness who had provided perjured testimony at the preliminary hearing, and (3) the trial court erred in ordering consecutive sentencing. After a thorough review of the record and the applicable law, we affirm the trial court's judgments.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY L. SMITH, JJ., joined.

Charles Edgar Waldman, Memphis, Tennessee, for the Appellant, Kelvin Dewayne King.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Lacy Wilber, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Lisa Naylor, Assistant District Attorney General; Cathy Morante, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION I. Facts

This case arises from the August 4, 2004, murders of Koehler Ramsey, Marcus Anderson, and Brittany Goodman. For these offenses, a Davidson County grand jury indicted the Defendant on three counts of premeditated first degree murder, three counts of felony murder, and one count of especially aggravated robbery. At the Defendant's trial on these charges, the following evidence was presented: James Hayes testified that he knew the victim, Koehler Ramsey, because they were both students at Fisk University, lived in the same apartment complex, and played on a basketball team together. On August 4, 2004, he walked to Ramsey's apartment around 8:00 a.m. When he entered the apartment, he saw Ramsey and Marcus Anderson, who Hayes also knew through a basketball program in Memphis, lying in blood. Hayes' cell phone was not working, so he ran to the Fisk University gym to use the phone in his coach's office, but found the coach was not there. Upon exiting the gym, Hayes saw a police officer driving down the street, and he told the officer what he had seen.

Officer Arthur Danner testified that on August 4, 2004, he was working in the patrol division of the Metropolitan Nashville Police Department when Hayes flagged him down. Hayes pulled up along side Officer Danner's car and screamed that he found two of his fraternity brothers dead in an apartment. Officer Danner went to the apartment at 1601 Herman Street ("Herman Street") to further investigate, and confirmed that two young men were dead in the apartment. The officer immediately called for an ambulance and other officers to assist him.

Daniel Cage, a Metropolitan Nashville police officer, testified that he was the first to arrive at the scene after Officer Danner's call for backup. When Officer Cage arrived, he and Officer Danner entered the apartment to ensure that the assailants were gone and found only the two victims. Officer Cage confirmed that both victims were dead. Anderson's body was seated in a chair and Ramsey's body was seated on the couch. Officer Cage noted that neither victim was in a defensive position and Ramsey's hands were still in the position of holding a video game control. Officer Cage observed that the television was set on a video game setting.

Tim Matthews, from the identification section of the Metropolitan Nashville Police Department, testified that he photographed and drew a diagram of the Herman Street crime scene on the day of these murders. Officer Matthews described the living room of the apartment as a relatively small room, where Ramsey's body was on the sofa and Anderson's body was located in a chair on the back side of the room. Both victims were in a seated position, with their pockets turned out, and had large amounts of blood around their faces and chests. There was no indication of a struggle or forced entry into the apartment. The television was on and set to an alternate channel to play video games. Play Station video games, a memory card, and a DVD disc were recovered at the apartment, but no DVD player,

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game system, or controllers were found.

Officer Matthews testified police found two nine millimeter discharged shell casings beside Ramsey, one behind his head and the other between the couch cushions. Officer Matthews stated that a bullet fragment was found on the floor between Ramsey's feet, two discharged shell casings were found near Anderson, one of which was found in the folds of his shirt. Green plant material which appeared to be marijuana was recovered from both the living room and inside the front bedroom. Officer Matthews further testified that fingerprints were collected at the scene, as well as some blood samples from blood spatter near the inside door frame and on the outside door of the apartment.

Heather Young testified that, on August 4, 2004, she was working as the property manager in Bellevue at Waterford Place ("Waterford Place"), where Marcus Anderson rented an apartment. On that day, Detective Robinson came to the complex and requested entrance to Anderson's apartment. Young did not allow the Detective to search the apartment, but went with her maintenance supervisor to conduct a maintenance check of the apartment. Young knocked on the door and there was no response. She attempted to use her key to open the door but it was unlocked. Young recalled that she "did [not] have a good feeling." She entered the apartment first, and the maintenance supervisor walked down the hallway, but all the doors were shut. They called Anderson's name as they went through the apartment but received no response. Young entered the first bedroom and saw a person, later identified as Brittany Goodman, Anderson's girlfriend, lying on her side. The side of her face and the bed sheets were covered in blood. Young told the maintenance supervisor, and they locked the apartment, returned to where Detective Robinson was waiting, and gave him keys to enter the apartment.

William Kirby of the Metropolitan Nashville Police Department Identification Section testified he reported to the Waterford Place crime scene on August 4, 2004, where he found the door unlocked and no signs of forced entry. Officer Kirby photographed the scene, collected evidence, focusing on firearms evidence, and assisted in creating a crime scene diagram. He went into the bedroom where Goodman's body lay, and saw that she appeared to have been sleeping with the covers pulled up close to her head. Near her, he collected two shell casings, one by her arm and the other in plain view on the bed. Officer Kirby testified that police were unable to successfully lift any fingerprints from the apartment. The apartment appeared to be in order with nothing overturned or disturbed.

Armand Davis, who was also charged with Brittany Goodman's murder, testified he had a previous felony drug conviction. Davis further testified that he came to Nashville from Memphis with the Defendant on July 29, 2004, after a warrant on unrelated charges had been issued for Davis' arrest. The Defendant suggested the two men go to Nashville where Davis

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could "make more money" selling drugs, because of the higher drug prices in Nashville, and where they could "get away for a minute." The two men left Memphis in the Defendant's van but, after the van's transmission broke down, the Defendant called a friend, Tariq Seymore, to take them the rest of the way to Nashville in Seymore's Maxima. Once they arrived in Nashville, they went to one of the Defendant's friend's apartments to stay the night. In the morning, the three men went to Pinkie's car wash and beauty shop in Nashville. The Defendant told Ira Bowers, "Pinkie," about his van, and Pinkie arranged for a truck to tow the van to Nashville. Seymore, Davis, and the Defendant waited at Pinkie's for the van to arrive. While they were waiting, Anderson, whom Davis had never met, arrived in a white Oldsmobile.

Davis recalled that Seymore returned to Memphis, and so Anderson drove the Defendant and Davis, either in Anderson's white Oldsmobile or in Goodman's white Toyota, for the remainder of their stay in Nashville. During this time, Anderson invited Davis and the Defendant to stay at his apartment. Davis testified that, during the few days they stayed in Nashville, he and the Defendant went back to Memphis twice in Goodman's Toyota to purchase drugs. Anderson accompanied them on one of the two trips. After one of the trips to Memphis, they went back to Anderson's apartment and "weighed up" the marijuana before taking it to Ramsey's apartment. Davis described Ramsey as Anderson's "partner."

Davis testified that the next day the Defendant went to a golf course with Pinkie. Anderson and Davis drove around in Goodman's Toyota and waited for a phone call from Steven Hardy, a record manager Anderson was hoping to work with. Hardy called and Anderson arranged to meet Hardy at Ruth's Chris Steakhouse. Anderson and Davis arrived in Goodman's car at the restaurant around 11:00 p.m. At about the same time, the Defendant was dropped off at the restaurant by Pinkie. Davis recalled that everyone stayed at the restaurant briefly because it was closing, but they agreed to meet in a half hour at an IHOP. The Defendant, Anderson, and Davis left together in Goodman's Toyota, drove to the IHOP, ordered food, and waited for Hardy. Once Hardy arrived, Davis noted Hardy was no longer wearing the jewelry he wore at Ruth's Chris Steakhouse and that Hardy was driving a different vehicle. The Defendant talked with Hardy about "the deal" Hardy had offered Anderson. Davis described the Defendant as acting as if he were Anderson's manager. Based on the conversation, Davis said that the Defendant apparently did not think Hardy's offer was a good one. Davis testified that he only listened during the conversation, and he noted that Anderson did not speak much and seemed embarrassed. Davis recalled that at some point the Defendant was upset about his food and took his food back to the kitchen. They remained at IHOP about twenty minutes before Hardy left in a gray Toyota.

Davis testified that, after the meeting at IHOP, the Defendant wanted to go back to Ramsey's apartment to get more "hydro," a better grade of marijuana. Anderson drove them

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to Ramsey's apartment where Ramsey was playing Play Station. Ramsey asked for twenty dollars a piece for the "hydro"and, after examining the drugs, the Defendant objected to the price. Davis stated that the Defendant and Ramsey "had a little altercation" over the price, but then the Defendant "was all right" and asked for the restroom. When he came out of the restroom, he pulled a gun, took off the safety, and shot Ramsey twice in the head and then turned and shot Anderson twice in the head. Davis, who was sitting on the couch next to Ramsey playing the video game, jumped up and ran out of the door after the Defendant fired the first shot. The Defendant came out shortly after Davis and said, "you forgot the Play Station. Your fingerprints are all on it, you know." The Defendant also had the marijuana he had argued with Ramsey over and the keys to Goodman's Toyota. Davis testified that at this point he just wanted to go back to Memphis, but their bags were still at Anderson's apartment. The Defendant told Davis "we gotta [ ] kill the girl. She's the only one who knows we're here and our clothes are still over there."

Davis recalled that, once he and the Defendant arrived at Anderson's apartment, the Defendant tried the key, but it would not work, so he knocked on the door and identified himself to Goodman. She opened the door and headed back to a bedroom. Davis gathered their clothes and was leaving the apartment when he heard two gunshots. When the Defendant got back in the car, he said, "it was easy ? easy. All I did was tap her on the shoulder and shot twice." On the drive back, the Defendant asked Davis if he was "all right." Davis asked him why he had to kill Anderson, and the Defendant replied that "`Marcus is a bitch,' or something like that." Davis testified that he saw the murder weapon, a black nine millimeter, on the drive back to Memphis and had seen it on the Defendant previously because the Defendant always wore it in his waistband. When they arrived at Vicki Parson's house, the Defendant's girlfriend in Memphis, they parked Goodman's Toyota in the garage, and the Defendant took Parson's car to drop Davis off at his aunt's house.

Davis testified that the next day he received a call from the Defendant who wanted to meet with Davis. The Defendant stated he was getting a lot of phone calls from Anderson's family. The men met at a fast food restaurant and Seymore was with the Defendant. The Defendant told Davis that he and Seymore were going to Nashville. The three men left the restaurant and went to the Defendant's mother's house. From there, Davis suggested they get a room at a hotel so the Defendant could "get his thoughts together." Davis paid for the room, but Seymore checked into the room under his name.

Davis testified that the Defendant received numerous phone calls about the murders while they were together, one of which was from a detective. Davis recalled hearing the Defendant tell the detective that he did not murder the victims and would drive back to Nashville to talk with them. The Defendant told Davis that "Pinkie probably said something, and he didn't know no better." The Defendant also told Davis that he got someone to dispose

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of Goodman's car. The Defendant said he was going to Nashville to talk to the detectives and wanted Davis to say nothing to the police. Seymore and the Defendant left to go to Nashville while Davis stayed in the hotel room watching television.

Davis testified that later that night the Defendant woke him up knocking on the hotel room door. The Defendant said he decided not to go to Nashville but to change his identification and flee instead. The Defendant left and Davis went back to sleep. Later, he was awakened again, this time by the police, who informed him that Seymore had signed a consent to search the hotel room. The police searched the room, and Davis consented to a search of his car. The police took Davis into custody and he spoke with Shelby County Detectives, initially telling them he did not go into Anderson's apartment when Goodman was killed. Davis explained this lie by saying that he "really was trying to just narrow myself out of it, to be less involved if I could." After denying he entered the apartment, Davis confessed to police that he entered the apartment with the Defendant to get his belongings when Goodman was shot. Davis agreed that he had been interviewed multiple times since the initial interview and had consistently stated that he knew they were going to Anderson's to kill Goodman and get their belongings.

Davis acknowledged that he was charged for his participation in the murder of Brittany Goodman and was appointed an attorney, who was present in court during Davis's testimony. Davis testified that he decided to cooperate and talk with detectives, as well as testify against the Defendant at trial. Davis agreed that he had not been offered any deal or agreement in exchange for his testimony at trial.

On cross-examination, Davis admitted that police found cocaine powder in his pocket when he was arrested, and described himself as a heavy pot user at that time. Davis also admitted multiple times during cross-examination that, during the preliminary hearing for this case, while under oath, he stated that he did not enter Anderson's apartment when the Defendant shot Goodman. Davis admitted he was a drug dealer in August 2004.

Davis again recounted the events of the day of the murders stating that he spent the majority of the day with Anderson while the Defendant was with Pinkie and adding that, at Ruth's Chris Steakhouse, Hardy was driving a SL-500 Mercedes and at IHOP Hardy arrived in a gray Toyota, dressed differently, and wearing no jewelry as he had been at Ruth's Chris Steakhouse. By the end of the conversation at IHOP, Davis felt Hardy had "lost interest in the deal."

Davis testified that, after leaving IHOP, the Defendant and Anderson argued the whole way to Ramsey's apartment regarding the discussion with Hardy. Davis speculated that the Defendant was angry because Anderson was not listening to him regarding the management

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deal with Hardy. While at Ramsey's, Anderson appeared to Davis to be frustrated and "ready to go." Davis estimated that the Defendant was a couple feet from Ramsey when he shot him. After the Defendant shot Ramsey, Anderson asked what he was doing and then the Defendant turned and shot Anderson twice. Davis fled the apartment and the Defendant followed with the Play Station.

Tariq Seymore, the Defendant's friend, testified that he has known the Defendant about four years. Seymore received a phone call early in the morning on July 29, 2004, from the Defendant. The Defendant told Seymore that his van had broken down and he needed Seymore to come and get him. Seymore picked up the Defendant near Jackson, Tennessee, in Seymore's green Maxima. When he arrived, the Defendant was with a man introduced as "A" or "A.D.," later identified as Armand Davis. The Defendant asked Seymore to take them to Nashville so the Defendant could see his son and offered to pay Seymore's gas for the trip. Seymore agreed, the Defendant and Davis put their duffle bags in the Maxima, and they drove to a friend's apartment in Nashville for the night.

The next morning, Seymore took the Defendant and Davis to Pinkie's shop. The Defendant made arrangements with Pinkie for his van to be retrieved and then they waited for the van to arrive. Once the van arrived, the Defendant told Seymore he could leave, and Seymore drove back to Memphis at approximately two or three in the afternoon. The following week, the Defendant called Seymore and asked him to come to his house. When he arrived, the Defendant was in the shower, so Seymore waited in the driveway for approximately an hour. When the Defendant came out, he was on the phone and handed Seymore some marijuana. Seymore was in his car while the Defendant was talking on the phone outside the car. Seymore testified that the Defendant was "getting heated as he talked," so he rolled down the window to listen. He heard the Defendant say "[Seymore] came and picked me up in Nashville" and "detective." From the use of the term "detective," Seymore assumed that the Defendant was speaking to a detective. Seymore recalled that the Defendant later called someone whom he told to take the car to "E's" shop and "get the car cleaned."

After that conversation, the Defendant got into Seymore's vehicle and appeared "a little worked up." The Defendant told Seymore to say he picked the Defendant up in Nashville and drove him back to Memphis, and, although Seymore knew this was not true, he agreed. Seymore then took the Defendant to meet Davis at a fast food restaurant and Davis followed them to a hotel, where Seymore registered for a room in his name at the Defendant's request. Around 10:00 p.m., they saw a picture of the Defendant on the news related to the Nashville triple homicide. Some time after that, Seymore took the Defendant home while Davis remained at the hotel room.

Seymore testified that, when they arrived in the Defendant's neighborhood, a police

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car was circling the neighborhood. After Seymore left the Defendant, he noticed that the police car followed him for a few miles and then pulled him over. Seymore had been smoking marijuana, which the officer smelled, and asked Seymore to exit the vehicle. The officer took Seymore to the police station, where Seymore lied to detectives at first, but eventually told the truth. The police told Seymore they found marijuana and a box of bullets in his car. Seymore acknowledged possession of the marijuana, but said he did not know there was a box of bullets in the glove box. Seymore recalled that the Defendant rode in the front seat of Seymore's car on the way to Memphis, and he opened the glove box. Seymore did not see the Defendant put bullets in the glove box, but said the Defendant was the only other person who would have had access to the glove box.

On cross-examination, Seymore admitted he used marijuana daily. Seymore testified that, when he arrived at the Defendant's house, he saw a white Toyota Solara in the garage. Seymore did not tell police this when he was interviewed in August 2004, but did tell them about the car in a March 2006 interview. Seymore also acknowledged that the Defendant asked Seymore to drive him to Nashville to talk with detectives. They began the trip but turned around and returned to Memphis.

Sergeant Joseph Wayne Moore with the Shelby County Sheriff's Department testified that on the night of August 4, 2004, he was working in the patrol division. Sergeant Moore received notice of a triple murder in Nashville and of a white car, belonging to one of the victims, that police thought to be en route to Memphis. Sergeant Moore drove by the suspect's residential address in Bartlett, Tennessee, and noticed a car parked in the driveway with the engine running, all of the doors open, and the lights on. The garage door of the house was open, and he saw two black men, one in the garage and one outside the car. Sergeant Moore circled the block, parked and walked up the street. He heard the two males talking, one of them said, "the police just drove by," to which the other responded "I'm getting out of here," and drove away. Sergeant Moore ran back to his car, and caught up with the man, he later learned was Seymore, and stopped him for speeding. Upon approaching the vehicle, Sergeant Moore smelled the strong odor of marijuana and asked Seymore to exit the vehicle. Seymore admitted he had been smoking marijuana, so Sergeant Moore placed him under arrest and searched the car, recovering from the glove box a box of forty caliber automatic bullets and some type of gun permit badge. A bag of marijuana was hidden in the gear shift. Seymore claimed he did not know the bullets and gun permit badge were in the glove box.

Ira Bowers, also known as "Pinkie," testified that he owned a car wash and a beauty parlor in Nashville, Tennessee. Bowers said he had been friends with the Defendant for approximately ten years. Bowers recalled that on Friday, July 30, 2004, the Defendant contacted Bowers and told him that his van had broken down on his way to Nashville. Bowers sent a truck to tow the vehicle to a shop in Nashville. Bowers recalled that the

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